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Forum Home  →  Discussion  →  Residence issues  →  Thread

Retaining worker status during a gap

SarahP
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Derby Advice - Derby Homes

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Joined: 22 June 2010

Hi,

Does anyone have any thoughts about how likely I am to win an appeal that my client retains his R2R as a worker despite a three month gap between ending work and claiming UC.  There were good reasons for the delay. He doesn’t speak English so couldn’t claim online without help and couldn’t find any help, approached JCP in person twice to request help and was told they couldn’t do anything and that help he would have to find a friend that could do the online claim. Eventually claimed with help from a community organisation that someone he knew told him about. He arguably didn’t withdraw from the labour market as during the three month gap he was spending hours going door to door asking if places had vacancies.

His circs are that he is originally from Pakistan, lived in Spain from 2001-2016 before coming to UK and working consistently until he lost his job in Dec 2019. He has pre settled status.

Va1der
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Welfare Support Worker - Community Renewal Edinburgh

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There has been a fair bit of useful caselaw concerning delays in registering as a jobseeker. The only one I can think of off the top of my head is SSWP v MM (IS) [2015] UKUT 128 (AAC). Which concerned IS and a 5 week delay. I’m sure someone else can contribute something more useful. Or try a trawl of the forum, it has been discussed a fair few times.

The fact that he tried to claim counts in his favour, although he may have some difficulty evidencing it.

Did he try claiming new-style JSA? Should have been eligible in his circumstances.

SarahP
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Derby Advice - Derby Homes

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Thanks for that. No claim for CB JSA no but that’s a good suggestion. My understanding is that he will still need to establish a R2R that isn’t a jobseeker to receive UC as a top up for any housing costs.

Va1der
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Welfare Support Worker - Community Renewal Edinburgh

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Sorry, the case I referred to regards reasonable delays in registering as a jobseeker (i.e. claiming UC) - which is a condition of retaining worker status.

Claiming nsJSA would have achieved the same.

SarahP
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Derby Advice - Derby Homes

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Have you got any thoughts on the likely effect of claiming NS JSA now? If we made a claim and requested backdating 3 months to July 2020 that would still leave a gap between Dec 19 and July 20. Although he would likely get NS JSA if he needed UC top up for housing costs in the future (not liable for rent at the moment) he wouldnt have retained the worker status while on NSJSA due to the gap would he? Or am I getting mixed up?

Elliot Kent
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Va1der’s point is that nsJSA would have been one way of complying with the requirement to register as a jobseeker although it’s not going to help in that regard now. It would still potentially be worth claiming it for its own sake because it might mean that your client at least has some income - it isn’t subject to a right to reside requirement so if the contributions conditions are met, there will be an entitlement without further complication.

On your ongoing appeal, it has sometimes been said that a three month gap is about the upper limit of status that can be retained but it will ultimately depend on whether the Judge agrees that your client remained engaged in the labour market between the end of the job and making the claim. I would make sure that your client is in a position to give evidence about the specific steps he took to remain engaged.

Did he print out CVs? How many did he print out and how many does he have left? - Where did he go round asking door to door? Does he have a diary or a list of places he went? Did he get any interest? - Did he sign up for any agencies? Which ones? Has he got any emails from them? etc. etc.

[ Edited: 15 Oct 2020 at 03:10 pm by Elliot Kent ]